Sunday, December 7, 2014

Selling Loosies vs Stealing Swisher Sweets

About 4 years ago, I advocated something called "The Neighbor In A Cage Test" for new laws. 
In short, would you be willing to put your neighbor in a cage if he refused to obey (or fund) your proposed law?  Because that's exactly what happens when your neighbors don't obey laws, no matter how stupid the laws, no matter how few people voted for them, no matter how corrupt their origins.

We've had two good cases for this in the last few weeks.  Michael Brown and Eric Garner. 

We don't often think of Government this way, but....

1)  Government is force. 
2)  Government also writes laws. 
3)  Government uses force to ensure compliance with all of its laws, including the bad ones.   
4)  If you don't agree to obey the laws, or fund them, you will be locked up....
5)  In a cage. 

Here's how it works in theory.  This is from noted Yale Law Professor Stephen Carter:

On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.
I wish this caution were only theoretical. It isn’t. Whatever your view on the refusal of a New York City grand jury to indict the police officer whose chokehold apparently led to the death of Eric Garner, it’s useful to remember the crime that Garner is alleged to have committed: He was selling individual cigarettes, or loosies, in violation of New York law…..
The problem is actually broader. It’s not just cigarette tax laws that can lead to the death of those the police seek to arrest. It’s every law. Libertarians argue that we have far too many laws, and the Garner case offers evidence that they’re right. I often tell my students that there will never be a perfect technology of law enforcement, and therefore it is unavoidable that there will be situations where police err on the side of too much violence rather than too little. Better training won’t lead to perfection. But fewer laws would mean fewer opportunities for official violence to get out of hand.
BTW, a "loosie" is a single cigarette.  The New York Police Department had an "opportunity for official violence to get out of hand" (in Professor Carter's words), and supposedly choked Eric Garner to death.

Garner had been selling loosies.  (The rationale for selling these single cigarettes is that retailers have to charge an ungodly tax on packs of cigarettes.  Those who are willing to sell individual cigs usually don't send additional inflated cut to the IRS.  Hence the illegality, even though the tax was already paid by the first purchaser of the "broken" pack.) 

But that's the theoretical part of it.  Here's an interview with a NYC police officer, explaining the difficulty of enforcing bullshit laws:

What do you think about all this? I mean, honestly — that video. Eric Garner looked so scared.
Well, Garner was in bad health, and Pantaleo said it wasn’t a chokehold; he was just trying to take him down so they could arrest him. The thing that nobody hears about in the media is that Garner had been arrested for this before. The store owners, they had been … saying he was taking away their business. These people pay their taxes; they pay for tobacco licenses. They wanted him gone.

Right, but he wasn’t fighting the cops. He was just standing there with his hands up.
Yeah, but he’s a big guy. He could have been holding up his hands, or he could have been threatening them. All I’m saying is that cop needed to arrest him. Once that was decided on, they had to take him in one way or the other, and he didn’t want to go … but maybe there was excessive force used. I won’t say there wasn’t.

So you don’t think this is a race thing?
No, it’s not a race thing. It’s a Ray Kelly thing. (Ray Kelly was a veteran NYC Police Commissioner.)  That man singlehandedly ruined this department. When I came up as a rookie, you were assigned an older cop who had been around and knew what they were doing. We were taught that you catch more flies with honey. Basically, if you let the small things go — like the guy selling loosies or weed or whatever on the corner — then when the big shit happens, like homicide or burglary, those are the same guys who will tell you all about it. If they hate you, they won’t tell you shit.

But this is happening everywhere. I mean, Ferguson — there have been so many of these cases for so long.
All I know is New York City. Nowadays, since Kelly’s Operation Impact, rookies are taught one thing: Write tickets, do searches, make money. They’ll have a quota they have to fill. They’re not supposed to, but they do. They come up not knowing their asses from their elbows. These rookies don’t understand how to let the small stuff go. They'll be on your back for a bag of grass.  So when things happen they overreact.   
There you have it....
The theoretical problem from Yale's Stephen Carter. 
The practical problem from a NYC cop. 
Which leaves the rest of us with a problem. 
Would you be willing to have someone strangled to death for selling loosies?  If not, then don't ask someone else to do your dirty work.

How would that work out?  Where does one draw the line? 

Well, take the case of Michael Brown. 

(If you've been living under a rock, Michael Brown, a black teenager, supposedly did a strong-arm robbery of a convenience store, walked out with some Swisher Sweets, was stopped by a white cop, then something happened that we'll never, ever, ever figure out, and Michael Brown got shot.  Dead.) 

Here's a video supposedly showing some of the last moments of Brown's life.  If you're in a hurry, the last 20 seconds are the key moments. 

Would I be willing to shoot someone to keep Swisher Sweets from being stolen?  I don't know, and I hope I never have to find out. 

Would I be willing to outsource that job? 

I can only answer with a very reluctant.... Yes. 

That's one of the Big 3 legitimate functions of the state.  (Protect the borders, provide a courts system, and protect property rights.)  Even if the property in question is a $40.00 box of cheap cigars. 

But would I willingly pay someone to shoot the people who sell loosies?  Heck no. 

Libertarianism in a nutshell is "Don't hit people and don't take their stuff."  Hitting people (except in defense) and taking their stuff is a job reserved for the state.  Michael Brown took a convenience store's stuff and hit the clerk. 

Eric Garner didn't take anyone's stuff, and it doesn't look like he hit anybody. 

Brown and Garner are both dead. 

Another Libertarian clutch-phrase is "If there is no victim, there was no crime". 

Who was the victim in these two cases?  Brown?  Garner?  The convenience store clerk?  The IRS? 

Please discuss. 


Anonymous said...

Your synopsis is bullshit. Eric Garner was not strangled, and Mike Brown was a thug who attacked a police officer. If I was a New York merchant busting my ass and paying taxes I would want people like Garner to go to jail. If he acts like an asshole while the cops are trying to arrest him and has a heart attack, maybe he should have paid taxes, too. Same with Brown. Don't take peoples' shit against their will and don't attack cops. Fuck's sake.

marshall said...

Eric Garner=Cliven Bundy.
sure, there are differences. let's consider the similarities, because they are relevant.
A person is actively engaging in a action that is important to their financial well beig, but is in direct vilation of the law.
One used armed militia men to defend against government enforcement, the other said 'go away, I don't want to talk to you' to defend against government enforcement.
one is dead.
A person can 'look like a thug with their pants around their ankles' if the damn well please. If your job is to 'stop people who have commited crimes', you have not place considering waist line habits or speech patterns. If i'm selling loose cigarettes, write a ticket and get gone.

The conversation we need to be having about police action is not about race, but about the value of human life. If we could consider the problem of profiling seperately than that of killing ANYONE who did not initiate a level of violence that justifies DEATH, we'd probably realize that the solving the latter will likely greatly minimize the former.
In other words, if cops can't hurt people who haven't been convicted of a crime, and aren't violent, then excessive stops aren't AS BIG of a problem. sure, it still needs to be addressed, but it's not destroying a subculture...

Anonymous said...

Hence the illegality, even though the tax was already paid by the first purchaser of the "broken" pack.)

Sorry but the current law is a little more complex than that.

First and foremost, it was a business for Brown; so we can safely assume he was making a profit, right?

So, there had to be a mark up for the sale of the singleton's. As such, he was probably not paying the sales tax involved ON HIS Sales.

Next, you can't just open a business any more. I don't like the laws but until we change them, they should be followed.

In NYC, there are registrations and licenses and permits that must be obtained to open a business. It is pretty safe to assume that Brown didn't comply with those ordinances and laws, right?

And isn't it against federal law not to post certain signage, to not check identification?

So while I agree with the Libertarian ideal, I can definitely see that people were being hurt by Garner's crimes -- loss of income eh.

Both the state/federal government and the stores he sold loosies in front of. If there was a large man - apparently angry, in front of a store, I probably would pass it by for another location.

Now, again I'm fine with starving the government, all of them, as much as possible. But the taxes in some cases do good -- if you are doing to break the law, you have to be ready to face the consequences.

Garner didn't want to face the consequences, he wanted to continue breaking the law -- and hurting the people whose stores he was in front of.

Bob S.

Steve D said...

'Libertarians argue that we have far too many laws'

The issue has nothing to do with the number of laws. If it did, eliminating all laws against violent crime (murder, assault, rape etc.) would be a step in the right direction.

The issue has everything to do with the fact that many of our laws do the exact opposite of what laws are meant to do. They should be used to protect individual rights but instead their enforcement violates individual rights.

Steve D said...

'Once that was decided on, they had to take him in one way or the other."

No one should ever be assaulted for selling a cigarette. The cop who did this is morally worse than a street thug because he claims the right to violate the rights of others. Even if Garner had not died it was still an atrocious act.

‘if you are doing to break the law, you have to be ready to face the consequences.’

No, no and NO! This is a moral issue about the respect and protection of human rights and not just a legal issue. Otherwise, politicians or the public could make up any laws they want (say for example a law legalizing slavery) and then kill anyone who didn’t obey them.

The ‘Neighbor in a Cage’ idea is a great way to make this issue clear. OTOH, as you show later, it devolves quickly into a ‘Shoot the Neighbor’ scenario since if we assume that the neighbor might not go voluntarily to the cage, its s a good bet you night have to kill him.